InnoLux admitted infringing some of Mondis's patents in connection with computer monitors. A jury found some of the infringement to be willful. So InnoLux was in a bad place, and was warming up to get skewered on damages. The judge (Judge Ward, who is famous for his scathing opinions) ordered that a 0.75% royalty be paid for all of the infringing monitors sold. But then the judge caught wind of a statement InnoLux's CEO made to a Chinese newspaper, that "patent infringement is 'being taken too seriously sometimes.'" The judge doubled the royalty rate to 1.5%. His basis?

"The court finds that this statement by InnoLux's CEO shows InnoLux's lack of respect for this court and the jury's verdict. It is also an affront to the U.S. patent system - a system of constitutional origin. The court, therefore, finds that this also warrants a strong enhancement because it further reflects the egregiousness of InnoLux's conduct."

This is an astonishing usurpation of authority. The patent law does not require (or permit) damage enhancements based on evidence of a lack of respect for judges or verdicts. Instead, "upon a finding for the claimant the court shall award damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court." This means lost profits or a reasonable royalty or a little of both, but at least a reasonable royalty.

But even if the court had power to set damages at his own discretion, not bounded by a requirement that he award just enough to be "adequate to compensate," this would still be shocking. First, criticizing things that are "constitutional in origin" is the great American pastime, and is certainly not lawfully restricted by a court. American courts may only enforce Congressional laws (since Erie v. Tompkins, there is no federal common law). So whatever authority the court thinks it has to spank someone for something non-damaging that they have said must come from the court's interpretation of a Congressional enactment. But since Congress shall make no law restricting the freedom of speech, any interpretation that provides for a damage enhancement on the basis of non-damaging speech must be incorrect. In any event, the First Amendment amended the document containing the IP clause, and therefore supercedes it.

Should I be worried if I criticize a regime that permits states to sell booze? While Constitutional in origin, it seems to make liquor a publicly owned and distributed good. Do we want to be a country of socialized inebriation? Must we tolerate bourbon lines? What's next, gin stamps?

The fact that the Framers missed the boat on patents does not, and should not, mean we cannot criticize their miss. Even if they got it right in their first outing, if it is being misapplied now given modern circumstances (it is) we should be free to point that out however and wherever we want without fear of government intrusion or repercussion.

Judge Ward, of course, is the judge who put Eastern Texas on the map as the place to go for patent lawsuits, so it's no surprise that he seems to think saying something bad about the US patent system opens you up to greater damages. But it seems like a pretty serious First Amendment issue when the judge is, quite clearly, punishing someone for their speech. What's really scary is that this could create a significant chilling effect on the people who need to speak out most: those attacked over questionable infringement claims. If they now know that they can face even higher damages merely for complaining about the patent system that put them in this mess in the first place, isn't that a huge problem?

Re: No Surprise

Re: No Surprise

"I would be surprised if this does not get overturned on appeal; but if not, well, stranger things have happened."

I doubt it for one reason. Notice how all patents go to ONE court. That's the CAFC, IIRC. So not only will they defend him, they'll increase the fee to punish him for speaking out. This is a lot more chilling than Mike lets on. The judges are so biased against defendents, we really can't call this "justice". No, they're using the legal system to bully defendants and force them to pay people that do nothing. That's not capitalism, it's a glorified Robin Hood Ponzi scheme. Rob from the poor, give to the rich.

Re:

As usual, you didn't read all and over-stated according to bias.

This is for ONGOING infringement, now seen to be WILLFUL, and directly linked to statements the company made AFTER the verdict, and so I find it fitting.

"After Mondis moved for supplemental damages, Ward enhanced the royalty rate for ongoing infringement. The judge said he was convinced subsequent infringement would be willful since the company's CEO gave a telling interview to the China Post after the jury's verdict in June."

Re: As usual, you didn't read all and over-stated according to bias.

Tell me Ootb...has the InnoLux CEO committed patent infringement again? Has he broken the law a second time? Are you actually arguing for a law that punishes people BEFORE the crime has been committed?
I'm not talking about police arresting someone with a knife in their hand just before they murder somebody: that's attempted murder.
I'm talking about a guy who just said something stupid. Punish him AFTER he commits infringement, yes, but until then, he hasn't done anything.

Re: Re: @Rikuo: As usual, you didn't read all and over-stated according to bias.

Really, I need only to repeat the title of my post. Grasp what "ONGOING" means before more questions. This ruling applies to the future. The company is now convicted and no longer has the full rights that it did before. -- That's not directly applicable to /criminal/ cases, is where you go wrong.

Re: Re: Re: @Rikuo: As usual, you didn't read all and over-stated according to bias.

The judge, in his own words stated that he was arbitrarily doubling the sentence based on the speech of the companies CEO in a newspaper interview... in CHINA.

The words were not spoken in court, had no part in the case itself, or in the initial punishment. The judge took it upon himself to punish the company for the words of the CEO.

There is no provision in law to punish this man, or his company for his speech. The judge specifically trampled the mans 1st amendment right to say what he will about the patent system. You couldnt even claim this as contempt of court because it didnt happen in the court, nor did it break any orders of the court.

The equvilent would be going to court for speeding, pleading guilty, and then giving an interview to a reporter saying you feel that speeding is taken too seriously in this country. Once the court found that out, then they doubled your fine.

Re: Re: Re: Re: Re: @Rikuo: As usual, you didn't read all and over-stated according to bias.

Wrong. The first amendment applies to things the government can and cannot do, it says 'no law,' and makes absolutely no distinction between citizens and non-citizens. Everyone has first amendment rights in a US court. The SCotUS has established the the 14th amendment's equal protection clauses extend 1st amendment protection to everyone, citizen or no:

"The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. . . . It [the 14th Amendment] will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction."

Re: As usual, you didn't read all and over-stated according to bias.

Mondis moved for supplemental damages. Ward enhanced on the basis that the CEO's statement that patent infringement is taken too seriously indicated a lack of respect for the court and the jury's verdict.

On your read, he enhanced on the basis that saying infringement is taken too seriously indicates that any ongoing infringement would be willful. Of course, after a verdict of willful infringement has been rendered (even if judgment was rendered notwithstanding that verdict), no further evidence of that is necessary (indeed, in the Fifth Circuit, willfulness is assumed as to any ongoing infringement after a verdict). The judge had set a rate of .75% for ongoing willful infringement based on the relevant evidence he had heard. He then enhanced that rate to 1.5% based on the comment. This was not because the infringement would be willful - that had already been decided. It was because the judge did not like the comment.

Taking it apart even more - the judge agreed, as did the parties, that there was a 9-factor analysis that should be applied to determine whether, and how much, to enhance rates for ongoing willful infringement. The judge then ignored 7 of those factors because he did not see how to apply them. He did not, for instance, consider InnoLux's post-verdict financial condition, remedial action, or motivation for harm (despite acknowledging elsewhere that InnoLux was not a competitor of Mondis, and therefore presumably had no motivation to undermine Mondis's (nonexistent) market share). Instead, he stated that the "paramount determination is the egregiousness of InnoLux's conduct." This statement finds no basis in the cited caselaw and does not appear in statute. But assuming its truth, the judge then based a 2x enhancement for willfulness NOT on the egregiousness of the infringement (which could after all be subtle, open, and necessary,) but instead on an out-of-court statement made in another country. That was the sole evidence cited by the judge. The judge assessed the doubling because of the egregiousness of an attitude, not the egregiousness of conduct. But the government is not supposed to dictate our attitudes - we get to decide what happens in our heads and hearts, and what comes out of our mouths. It only gets to penalize us for what we do.

Re: Re: As usual, you didn't read all and over-stated according to bias.

This statement finds no basis in the cited caselaw and does not appear in statute.

Not quite. The statement that that paramount determination is egregiousness of conduct actually also came from Read Corp., the same ruling that established the 9-factor test. It's a dangerously vague thing, but the judge didn't just make it up - he cited it from case law.

But if I'm reading correctly, the issue is about pre-verdict and post-verdict infringement and how one determines "egregiousness" in that case. The 9-factor test for increased damages was geared at pre-verdict infringement, and the judge rightly pointed out that many of the factors are difficult to apply to the future. While I get that, it is indeed concerning that he considered that reason enough to almost completely toss out the test and rule entirely based on the vague standard of "egregiousness" - but then what complicates things further, is it's not based on past egregiousness but on likelihood of future egregiousness (at this point it might as well be based on the colour of the guy's aura) and the judge took the newspaper statements as evidence that the post-verdict infringement (already established to be willful) would also be egregious.

Anyway I'm not trying to defend the ruling - it's weird and it seems pretty damn subjective, and it's always concerning when speech is punished. But I've yet to see the convincing legal argument for why it's wrong - as much as I'd very much like to see it...

Re: Re: Re: As usual, you didn't read all and over-stated according to bias.

I think you have it. The rule does not leave this to the trial court's arbitrary and capricious discretion, unbounded by reason. Instead, a test has been established that must be followed (even if that is real, real hard to do). The test itself is not unconstrained - the judge cannot decide that a factor cuts one way or another without considering evidence (which may not have to be admissible, but should be weighed and its credibility ruled upon).

Here, the judge properly indicated that the royalty rate should be .75%. Then he went about trying to decide whether and how much to enhance based on willfullness. According to Read Corp., a finding of willfullness does not mandate a damage enhancement, although it does permit one. Read goes on to say that the trial court must consider factors, including both aggravating and mitigating factors, and lists nine. Among them is one that would appear to be simple to apply here - the financial condition of the willful infringer, and particularly whether the enhancement would prejudice its non-infringing activity (which is not permissible).

The Federal Circuit requires that the trial court explain its consideration of the factors and how it arrived at the amount. To the degree the trial court did so here, its explanation was left wanting.

In any event, the fundamental problem here is probably not with the court's articulation of legal principles. The problem is that the only evidence considered was an irrelevant comment made outside of court. InnoLux's CEO thinks patent law is bad, or often misapplied. So WHAT?! What does that have to do with whether television and monitor sales include Mondis's patented inventions?

Appeal?

Re: Appeal?

First and foremost, the company is in willfull violation and then after being discovered in violation makes a statement to the Chinese press basically saying that the American system is too strict. This would indicate a lack of respect for the American patents which means that this company is very likely to violate American patents in the future. If this were turned around and an American company was violating a Chinese company's patent, I can assure you the Chinese judge would act very similarly.

I am really concerned with the general attitude of many TechDirt followers, it seems many of you seem to have some idealistic perpective of the way things should be in the world. Many of you seem to be under the assumption that no one should have a right to protect their invention from theft. You seem to be under the impression that if it can be copied it should be copied. Let us explore that concept breifly...

Lets say I spend 10 years and 10 billion dollars developing a contraption that allows someone to turn air into fuel. Within days of product launch, someone purchases one of my contraptions and reverse engineers the device. Now they begin mass producing the reverse engineered device and undercutting my price. Without patent protection I would have no recorse and no way to recoup my enormous investment.

This same scenario holds true accross all intellectual property disputes. Money, time and talent are invested in the devlopment of all intellectual property. Theft of said property, whether it be a device, a movie, a song or even an idea, harms the IP owner by circumventing his or her right to exclusively market the IP which they spent recources developing.

If you don't believe in intellectual property you should lead by example, let your creative juices flow and patent all possible ideas before someone else and then freely license those ideas.And while you are at it produce every song imaginable and every movie imaginable and give them all away for free. If you don't create it, you don't have any right to determine how it is sold, distributed or promoted.

Re: Re: Appeal?

Re: Re: Appeal?

Can we please talk about the article at hand? This article isn't about whether the guy infringed on patents, or whether patents should exist, or most of what you just wrote. This article is about a judge increasing a penalty because the guy verbalized his disagreement with the original ruling. It doesn't matter if he did this in a patent trial, moving infraction trial, or child molestation trial. What we are talking about is a judge increasing a penalty due to someone using their constitutional guarantee to free speech.

This is so wrong, the judge ought to be sentenced to remedial courses and removed from the bench until he does so.

If this were turned around and an American company was violating a Chinese company's patent, I can assure you the Chinese judge would act very similarly.

And you don't see a problem with that? In fact, I say that is the problem with this ruling.

Re: Re: Appeal?

That's your logic, that what works for China should be what works for the US? Who gives a flying fuck how a Chinese judge would act?

Lack of respect for the American patent system is not an adequate legal basis for doubling damages in a patent suit. Full stop. Everything else in your post is bullshit completely irrelevant to the topic at hand which was a judge increasing a damage away in a patent suit based on nothing more than speech he did not like.

Re: Re: Appeal?

You cannot punish someone or thing on what you 'think' they will do.
That would be like getting extra fines for a speeding ticket because the judge thinks you are going to speed again.
I'm not saying that we don't have a right to protect our property but, we do have the right to criticize, complain or otherwise talk about it in so far as the criticism does not entail libel.

Re: Re: Appeal?

This would indicate a lack of respect for the American patents which means that this company is very likely to violate American patents in the future.

WRONG

The decision to violate a law and the opinion as to whether it should exist or not are quite separate concepts.
If this were turned around and an American company was violating a Chinese company's patent, I can assure you the Chinese judge would act very similarly.

"But he did it too!" was never a good excuse even in the playground.

Lets say I spend 10 years and 10 billion dollars developing a contraption that allows someone to turn air into fuel. Within days of product launch, someone purchases one of my contraptions and reverse engineers the device. Now they begin mass producing the reverse engineered device and undercutting my price. Without patent protection I would have no recorse and no way to recoup my enormous investment.

Lets say I spend 10 years and 10 billion dollars developing a contraption that allows someone to turn air into fuel. Within days of product launch, someone turns up claiming they already patented it - a few years earlier and claims I'm an infringer. Of course the patent doesn't really cover my invention - but then lawyers and juidges seem to be ignorant of tech issues and I lose in court anyway> The patent sytem has left me no recorse and no way to recoup my enormous investment.

Re: Re: Re: Appeal?

The Chinese company has already proven that it WILL violate the US Patent, so the question of their intent is moot.

International law is rife with "But he did it too", special trade programs exist between countries with the express intent of allowing extrordinary trade practices between groups of countries (think NAFTA for example). And I don't think the judge made his decision because the offending company was in China.

Lets say I spend 10 years and 10 billion dollars developing a contraption that allows someone to turn air into fuel. Within days of product launch, someone turns up claiming they already patented it - a few years earlier and claims I'm an infringer. Of course the patent doesn't really cover my invention - but then lawyers and juidges seem to be ignorant of tech issues and I lose in court anyway> The patent sytem has left me no recorse and no way to recoup my enormous investment.

First to file without prior art wins. And as for your hypothetical technologically challenged judge siding with the complaintant, thats why there is an appeals process.

Re: Re: Re: Appeal?

"Lets say I spend 10 years and 10 billion dollars developing a contraption that allows someone to turn air into fuel. Within days of product launch, someone turns up claiming they already patented it - a few years earlier and claims I'm an infringer. Of course the patent doesn't really cover my invention - but then lawyers and juidges seem to be ignorant of tech issues and I lose in court anyway> The patent sytem has left me no recorse and no way to recoup my enormous investment."

and the reality of the matter is that this is a far more likely scenario than his scenario. Patent trolls, who contribute absolutely nothing, sue those that do innovate and contribute all the time. So your scenario happens quite often. His scenario ...

Re: Re: Appeal?

"I am really concerned with the general attitude of many TechDirt followers"

ABOLISH IP!!!! Be concerned with that. I want IP abolished and if any politician wants my vote, they should want it abolished too. The pirate party is expanding. It's expanding in the U.S, it's gotten more votes in Germany, and it will continue to expand. You should be very concerned, you might be out of a job that lets you get paid to contribute nothing.

"it seems many of you seem to have some idealistic perpective of the way things should be in the world."

Yes, because you have no idealistic perspectives of anything beyond the fact that you want to get paid to contribute nothing.

"You seem to be under the impression that if it can be copied it should be copied."

Not if it's a bad design. You seem to be under the impression that nothing should ever be copied.

"Lets say I spend 10 years and 10 billion dollars developing a contraption that allows someone to turn air into fuel."

The best you can come up with is an unsubstantiated hypothetical? No evidence, no logic, just some what if hypothetical? Lets say I spent ten years digging a hole at the beach? Should I be compensated when others step all over it? Or if someone else copies my idea and spends five minutes digging a hole?

"Within days of product launch, someone purchases one of my contraptions and reverse engineers the device."

If you are so worried about this happening, then I would be perfectly glad to take the risk of not having this hypothetical device invented in return for my freedom to freely copy whatever I please. It's a risk I'm more than willing to take. ABOLISH IP!!!! If you're so worried about people copying your non-existing hypothetical device that you will never come up with, then don't invent it. Are you spending the time right now to invent such a device? Or are you a lawyer who simply collects patents and sues?

The fact of the matter is that this is not how innovation works. I can give you far more examples of bad patents than you can of good ones. Most patents never even make it to product and every patent that never makes it to product is a bad patent. Many (if not almost all) patents are on obvious incremental changes that don't warrant a patent and many patents are held by patent trolls (probably like yourself) and law firms that develop and contribute absolutely nothing. Patents often have no regard for prior art either and are on ideas that were copied. Not everything needs a patent and plenty of innovation has occurred and will continue to occur without patents. It's a huge economic burden to place a monopoly privilege on inventions that will exist without them. If we can't reasonably distinguish between a patent worthy idea and a non-patent worthy idea then I say we abolish them. There is plenty of evidence that it only hinders innovation and there is very little evidence supporting the contention that it promotes advancement. The fact that the best you can do is a hypothetical evidences this.

What if someone else independently came up with the same idea or discovery (as is common)? Why should that person not be allowed to exercise his idea simply because you got to the patent office first?

"Without patent protection I would have no recorse and no way to recoup my enormous investment."

This assumes that patents are the only way to recoup from your invention. Such is a false assumption.

"let your creative juices flow and patent all possible ideas before someone else and then freely license those ideas."

Obtaining a patent costs money. Fighting expensive lawsuits costs money. That money can better be invested in innovation instead of litigation. Sure, it might keep the lawyers (like yourself) unemployed, but perhaps you can ... find another job. Maybe become a scientist and innovate instead.

"Money, time and talent are invested in the devlopment of all intellectual property."

This assume that IP is the only way to make money from an invention or composition. This assumes that IP is the only way to fund such things. It's not. It can be done in other ways and has been in the past. Innovation, music, art, etc... will continue without IP. People have and will find other ways to advance such endeavors. and patents aren't even really advancing these endeavors anyways, they only seem to be hindering them.

"Theft of said property, whether it be a device, a movie, a song or even an idea, harms the IP owner by circumventing his or her right to exclusively market the IP which they spent recources developing."

It's resources and I noticed that this isn't the only word you seem to misspell.

and copying is not theft. At least it's not the same meaning of the word that you wish to conflate it.

Theft is depriving someone of that which you are taking. Copying someone doesn't deprive them of that which is taken. It deprives them of something that they are not owed, a monopoly privilege. Taking something that someone is not rightfully entitled to is not wrong.

These monopoly privileges exist not because anyone has a right to them, they exist only to promote the progress. No one is entitled to a monopoly privilege. No one is entitled to the governmental resources necessary to enforce such privileges. No one is entitled to the time and resources that others must spend to be aware of and comply with your privileges. If you don't like it, you can find another job. Others will innovate and create art and music without you. I don't want any tax dollars spent on enforcing your patents. I don't want to spend any of my time looking up who has a government established monopoly privilege on what before I can independently come up with an idea and do something. I want these IP privileges gone. I want all government established cartels gone. From the government established taxi cab cartel to the government established mailbox delivery monopolies to the government established cableco cartel and the government established broadcasting cartel, I want them all gone. They all exist not to benefit the public or promote the progress, they exist to create centralized benefits at widespread costs. They exist to oppress the public. Patents are no different, they exist for the same reason as most other government established monopolies and cartels. To scam the public. I want these government established monopolies gone.

"If you don't create it, you don't have any right to determine how it is sold, distributed or promoted."

I should have such a right. and I doubt you create, you probably just litigate. and I want the legal system changed to abolish IP. If you don't like it, then don't create it. No one is forcing you to. Find another job instead.

Clearly, the CEO of the company didn't take the judgement seriously, didn't seem to care. The point of a settlement like this isn't only to "fairly" compensate the offended party, but hopefully also to encourage the defendant not to engage in similar behaviour in the future. This guys words made it clear that he had not respect, and would likely do it all again. Willful infringement is enough to get any judge's attention.

You guys may hate Judge Ward, but this is one time where he got it right.

Other way around

You got it wrong, laws don't force people to respect them, people change laws until the law is respectable. If people don't respect a law, it's because the law is wrong in some fashion. Now, you can be punished for breaking a law, and as pointed out in the article that punishment is usually laid out as part of the law in question. In some instances laws allow for punitory damages to be awarded, and there is a certain amount of flexibility allowed under certain kinds of law (such as prosecution of murder where the circumstances weigh heavily), but in general the judge must sentence according to the guidelines set forth in the law, not how he happens to be feeling that day or how he feels about the defendent. In other words, there is only so much flexibility in how a judges opinion is allowed to influence a ruling. The issue here is not the amount of the damages, it's that the judge was a moron and quite clearly stated that he increased the damages because he felt like it, which is clearly outside the class of things that influence the sentence. In practice of course how the judge happens to feel does have an impact on the sentence, but in theory it shouldn't. Had his original judgment been for 1.5%, or had he just kept his mouth shut about why he was increasing the judgement he probably would have gotten away with it. Since he didn't keep his mouth shut however, this will most likely get overturned in appeal because he violated sentencing guidelines (similar to the way evidence can be tossed out if it can be shown that a mistake was made during its collection).

Re:

This judge got it so wrong that his extra increase will easily be thrown out on appeal. The guys words very well might have meant he had no respect for anything and that he'd infringe on whatever patents he could gets his grubby little hands on. The time to punish him for that is when he does it. Not when he expresses his opinion that the US over enforces patents.

I think drug laws need to be thrown out. According to you and this judge, that means I should be locked up for twice as long as a drug offender because my words indicate I have no respect for drug laws and intend to break those laws. In reality, I don't do drugs, never have, and highly encourage anyone who does so to stop. See how words might indicate an action, but that action doesn't necessarily follow?

Certainly this judge knows this can't stand up to first amendment scrutiny. If not, I think it's time to throw him off the bench.

Re: Re: @"Chosen Reject": "According to you and this judge,"

I encourage you, if ever tried and convicted of anything from speeding ticket up, to spit your defiance at the court and disparage the law. Nearly guarantees you of maximum possible sentence. That's just the way it works, sonny, and not entirely without reason: having been found guilty by a jury of your peers YOU HAVE THEN LOST RIGHTS. That loss may not yet be applied pending appeal, but it pretty literally shuts you into a cage of limited actions. They've got this pretty well pinned down, and my bet is this doesn't even get appealed, just be rolling the dice again with judges who don't at all believe in letting a convicted -whatever- get away with defying the court.

Re: Re: Re: @"Chosen Reject": "According to you and this judge,"

No one was defying the court in anyway. There was no mention of not paying, just an expression of an opinion of the state of the patent system. I'd like to see your "That's just the way it works, sonny" stand up in any kind of court.

Re: "Clearly, the CEO of the company didn't take the judgement seriously..."

You added what I meant to say above. And that the judge had previously decided /against/ willful infringement UNTIL this jackanapes shot his mouth off. That's just never wise. Statements made outside of court can be relevant.

Re: Re: "Clearly, the CEO of the company didn't take the judgement seriously..."

So if it was decided that he already committed willful infringement, what is the point of this new ruling? Are they saying he committed willful infringement willfully? Did he commit twice as much willfulness? The judge set the amount based on willful infringement, the guy said something about over enforcement, and so the judge doubles the amount.

This is utterly asinine. Are we going to start double sentences anytime the defendant disagrees with the ruling? Is yelling out "I'm innocent" after being sentenced going to double the sentence? Is appealing a harsh sentence going to cause that sentence to be made harsher? This is stupid.

You're just flailing around raising a ruckus for the hell of it. NO, it's NOT "double sentences": the matter came up again by plaintiff motion -- which by the way seem to have been denied by this judge you claim is evil -- anyway, the CEO made remarks that imply his future actions are going to be WILLFUL and the judge is punishing him, as judges DO, for lack of contrition, or the appearance thereof,

Re: Re: "Clearly, the CEO of the company didn't take the judgement seriously..."

You're a little off there. It was a jury that found the infringement to be willful, not the judge, and it had nothing to do with these statements. The judge had already decided the damages for willful infringement, and then increased them after this statement - but the statement wasn't what made for a willful ruling.

I'll grant you, though, If you read through the ruling, the judge offers some pretty detailed justification. I don't like it, but I don't see any holes in it (of course, IANAL so I hope someone will be see what I'm not)

Basically, the judge has the ability to increase damages for willful infringement. This is typically applied to pre-verdict damages, but can be applied to post-verdict damages too. However the clear factors established for determining increased damages only really applies to the former, and doesn't work well post-verdict - this was also acknowledged by the courts. So the judge here has decided that, based on that, he can pay less attention to the specific factors and focus more on the summary that was given in the same ruling, that the overall purpose of the test is "egregiousness" of the defendant's behaviour - in this case, the egregiousness of his FUTURE behaviour, which is kind of hard to pin down. The judge is basically saying that, based on the comments to the newspaper, his future infringement will be egregious (it was already established that it would be willful)

Re:

There was no "settlement". This was a damage judgment, and it was not intended to be punitive. When the state needs to punish people, it has to do things like prove their guilt beyond a reasonable doubt, and pass a law permitting the punishment, and stuff.

There can be exemplary damages - that is, damages intended to communicate to the offender and the world that the prohibited behavior will not be tolerated. They are generally permissible only upon a showing not just of willfulness, but of egregious misconduct. In any event, judges are not supposed to make an example out of someone for disagreeing with them. The CEO's statements out-of-court were irrelevent to the damage determination.

Bottom line - Ward did not indicate a legal basis for the enhanced award, and instead based it on his desire to suppress certain speech based on its content. That is a no-no.

Re: Re:

Bottom line - Ward did not indicate a legal basis for the enhanced award, and instead based it on his desire to suppress certain speech based on its content. That is a no-no.

Ward is a highly intelligent judge who is accurately aware of the gaps in our system of justice, and uses that to leverage more grief on defendants than should be acceptable. He is hoping that, even though no legal basis has been indicated, defendants won't risk fighting back where an even worse judgment could result. At the same time, Ward also realizes that even if the defendant should fight back, odds tend to be against successfully doing so. All of this boils down to gaming the system by exploiting the holes within it. The house (almost) always wins. Clearly, based on his actions past and present, he is a cruel and vindictive individual who shouldn't hold the position of authority and responsibility that he does.

Re: Re: Re: Re: Re:

Re:

but hopefully also to encourage the defendant not to engage in similar behaviour in the future.

This is called "punitive damages". If you can show where in the law it permits punitive damages in response to patent infringement, then I will agree with you.

If the law does not permit punitive damages, then the judge needs to be smacked down. This is not Minority Report, so you cannot make the punishment worse after it's already been handed down just because you think the defendant will commit the crime again.

Re: Re:

If you read the ruling, the judge does lay out his reasoning (and yes the law does specifically permit punitive damages in the case of willful patent infringement, which a jury had already found this to be)

The question here is not about whether punitive damages are allowed (they are) but more about how the amount of those damages is determined, and whether the judge was right to increase them based on these statements.

I'd really like to see some more lawyers weigh in, because while this clearly sets off a red flag (as anything that punishes speech should) I currently can't see where the actual, technical, legal holes in his actions are, if there indeed are any. Based on the ruling, he seems to have followed the case law, and made subjective judgements in the right places. It really all comes down to what qualifies as "egregious" conduct - or more accurately what qualifies as evidence of future egregious conduct - and whether or not mere speech should ever be enough for that.

Re:

"Clearly, the CEO of the company didn't take the judgement seriously, didn't seem to care. The point of a settlement like this isn't only to "fairly" compensate the offended party, but hopefully also to encourage the defendant not to engage in similar behaviour in the future. This guys words made it clear that he had not respect, and would likely do it all again. Willful infringement is enough to get any judge's attention."

Your wrong. The law dictates what the defendant can be charged with. Its listed in TFA:

""upon a finding for the claimant the court shall award damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.""

This in no way allows for the court to double the "adequate compensation" because the CEO of the company said that he thinks the system is too strict. The wording of the law here specifically states that the damages award shall be for "adequate compensation of the infringment" it does not give leave to punish the company for commments made about the system.

Even if you insist, wrongly as it turns out, that the judge has the standing in law to punish the company more just because there *might* be a chance the company *could* infringe again in the future, the judge simply could not punish them for infringments that:

Re: Re:

This in no way allows for the court to double the "adequate compensation" because the CEO of the company said that he thinks the system is too strict. The wording of the law here specifically states that the damages award shall be for "adequate compensation of the infringment" it does not give leave to punish the company for commments made about the system.

Even if you insist, wrongly as it turns out, that the judge has the standing in law to punish the company more just because there *might* be a chance the company *could* infringe again in the future, the judge simply could not punish them for infringments that:

I don't like this ruling, but there are a LOT of errors in what you just said

- the law absolutely does allow additional punitive damages (up to triple, in fact) for willful infringement, which a jury had already found this to be

- In a weird way, yes the court CAN punish them for infringements that haven't happened yet. That's what the court-mandated royalty rate is: it's not a legal "license", it's actually a royalty to cover "future willful infringement" - basically it says "yes you can continue to infringe this patent as long as you pay to do so"

In the past, future infringement would typically be prevented with an injunction, but a case involving eBay changed that. Now the plaintiff is, in a lot of cases, powerless to prevent future infringement but able to receive a court-ordered royalty for it.

Re: Re: Re: Re:

Yeah, I'm with you that I don't see how this is permissible, and even if it somehow is the judge needs to put a LOT more justification in that ruling.

I just think there are some weird points flying around here that kind of miss the main one - like this idea that there is no such thing as punitive damages, or no such thing as penalties for future infringement.

Re: Not right

The patent law specifically limits the damages claimed to damages that were the result of infringment. Period.
It does not cover what someone says before or afterwards.
This judge is trying to un-lawfully punish someone because he did not like, agree with or took offense to what the CEO said.
This a clear violation of the First Amendment to the US Constitution and if it is left standing then they should take the original version of the Constitution, announce that it is no longer upheld or valid and; publicly burn it on the steps of the Capitol.

No more decisions from Judge Ward

"Federal Judicial Service:
Judge, U. S. District Court, Eastern District of Texas
Nominated by William J. Clinton on January 26, 1999, to a seat vacated by William Wayne Justice; Confirmed by the Senate on July 13, 1999, and received commission on July 15, 1999. Service terminated on October 1, 2011, due to retirement."
Copied from his Bio page on the Eastern District of Texas site.

Erie v. Tompkins

I think saying "since Erie v. Tompkins, there is no federal common law", may be either reading Erie v. Tompkins too broadly or else reading the term "common law" much more narrowly than it normally is.

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) definitively rejected the idea of a "General" or "Universal" common law that should be applied in diversity cases. It did not affect the common law created by federal courts regarding matters under federal jurisidction.

Re: Erie v. Tompkins

That's fair. I had not intended this for publication, or I would have been more careful both with that and with my simplification of the procedural posture. The underlying point remains valid - the court is constrained by the First Amendment even though it is not Congress, in part because it has no independent law-making authority.

Read the statute -- treble damages are specifically permitted

If you were to spend even 5 minutes looking into this issue, you'd find that judges are permitted to award treble damages in instances involving willful infringement, i.e. damages in excess of any actual damages that the plaintiff has or will incur.

35 U.S.C. 284 Damages.

Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.

When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed. Increased damages under this paragraph shall not apply to provisional rights under section 154(d) of this title.

The court may receive expert testimony as an aid to the determination of damages or of what royalty would be reasonable under the circumstances.

Re: Read the statute -- treble damages are specifically permitted

If you were to spend even 5 minutes looking into this issue, you'd find that judges are permitted to award treble damages in instances involving willful infringement, i.e. damages in excess of any actual damages that the plaintiff has or will incur.

Expressing a general political opinion should not be construed as indicating willfulness in any particular case.

"The court finds that this statement by InnoLx's CEO shows InnoLux's lack of respect for this court and the jury's verdict. It is also an affront to the U.S. patent system - a system of constitutional origin. The court, therefore, finds that this also warrants a strong enhancement "

"QA federal judge upped the ongoing royalty rate for payments InnoLux owes to Mondis for patent-infringing computer monitors because an executive for the infringing company was recently quoted as saying that "the issue of patent infringement is being taken too seriously sometimes."
In a 22-page ruling Friday, U.S. District Judge T. John Ward said the statement from InnoLux CEO Tuan Hsing-chien represented "an affront to the United States patent system.""

Uhhhhh

It is also an affront to the U.S. patent system - a system of constitutional origin.

A system of constitutional origin, bastardized by greedy, incompetant, malcontents (yes I mean congressmen and senators) paid to do so by their corporate overlords. I wouldn't be surprised at the number of judges also receiving funds from same said corporations.

Judge Ward

I am from Texas and this judge is an embarrassment to me, as a Texan. The fact that someone who was born before computers were even invented says to me that he clearly lacks understanding of how technology and patents should co-exist today. He should go home to his little farm in Hillbillyville,Tx and go back to patent cases involving almanacs and sideshow cure-all medicines. If someone did try to explain technology to this old fart, he would probably just get frustrated, mad and fine you.

hell yeah!

time to face the fact

That this particular legal system, its courts and judges are now entirely in the backpockets of the copyright maximalists.

Bribes passing back n forth, MPAA and RIAA basically doubling judges salaries all to make sure decisions in east texas don't undermine their basic philosophy of "screw human rights, the law AND the constitution, I want to make money"

Do letters to Judges work?

This is what I want to write to the Judge:

I have just read about your decision in Mondis Technology Ltd v. Chimei InnoLux Corporation et al and I believe you are being inappropriate in doubling the damages. The quote that instigated this letter is this:

"The court finds that this statement by InnoLux's CEO shows InnoLux's lack of respect for this court and the jury's verdict. It is also an affront to the U.S. patent system - a system of constitutional origin. The court, therefore, finds that this also warrants a strong enhancement because it further reflects the egregiousness of InnoLux's conduct."

When did “lack of respect” outside of a courtroom become cause for increasing damages? According to the law when infringement occurs the damages awarded are to be adequate to compensate for the infringement. Does “lack of respect” or “being an affront to the U.S. patent system” affect the damages toe Mondis Technology Ltd? You are little man who likes his power to cause other people you don’t like harm.

The other objection I have is that you have no respect for the first amendant. You have made saying what is on your mind outside the courtroom the courts business. If someone had killed another person and then said, “I think he deserved it because he was a child molestor and when you kill a child molestor the court’s take killing child molestors too seriously and give too harsh of sentences.” Do you think this man should get more time because of this? You again are a prejudiced judge infavor of you own high and mighty opinion that you think by saying something is cause for increasing damages.

Software patents

Software patents are a racket. Whatever the arguments are about protecting innovation, they simply don't apply to the vast majority of software patents. They are simply a means of transferring money from the software industry into the legal profession.

Because they are such an obviously bad idea, one might hope that they could be summarily abolished. I doubt whether this will happen. East Texas have a nice revenue stream coming in, effectively from the people who buy software around the world. It costs more because those Texas lawyers have to be paid. Are any programmers being protected by these actions? I doubt it.

APPEAL

If there were ever valid grounds for an appeal, this is it!! That judge had no grounds whatsoever to increase damages for a US citizen practicing his 1st amendment right of freedom of speech. We might as well tear up the constitution and start calling ourselves North Koreans.